RAAC in education settings: Preparing for, and responding to, requests for information

The Department for Education (DfE) has recently announced a change in its approach to managing RAAC (reinforced autoclave aerated concrete) found in school buildings. Recent cases of sudden failure in RAAC structures have led the DfE to advise education settings to vacate all spaces or buildings that are known to contain RAAC, unless they already have mitigations in place to make the building safe. 

A DfE update on 4 September stated that just over 50 schools are being supported with mitigation measures (including provision of temporary accommodation) and a further 104 have been asked to vacate buildings that are known to contain RAAC. It is not yet known how many schools are affected by RAAC – approximately 10% of schools have not returned the DfE questionnaire, which sought to understand the use of RAAC across the school estate.

The change in DfE guidance and subsequent media attention is likely to cause an increase in enquiries and requests for information made to schools and trusts about RAAC – whether or not they are affected by the new DfE guidance. Understanding your statutory obligations in responding to requests for information will mean your school or trust can reply appropriately under the applicable legal regime (either the Freedom of Information Act 2000 or the Environmental Information Regulations 2004).

Freedom of Information Act 2000 (FOIA)

Under FOIA, public authorities are obliged to publish certain information about their activities, and members of the public are entitled to request information from them. The definition of ‘public authority’ includes maintained schools, academies and government-funded free schools (‘public authorities’ are listed in Schedule 1 FOIA).

FOIA covers any recorded information that is held by a public authority and includes printed documents, computer files, letters, emails, photographs, and sound or video recordings. Note that FOIA is not limited to official documents and it covers, for example, drafts, emails, notes, recordings of telephone conversations and CCTV recordings.

In responding to requests for information, public authorities should have regard for the ‘Freedom of Information Code of Practice’ (which sets the standard for handling requests for information made under FOIA) and guidance issued by the Information Commissioner’s Office (ICO). Where a valid request is received, public authorities must determine whether the information is held. The Act recognises that FOIA requests place a demand on public authorities, and requests can be refused if to comply would exceed a specified cost limit (which is set at £450 in the case of schools).

If the information is held, there are certain circumstances where an exemption is engaged, and the information may be withheld from disclosure. Some of the exemptions are ‘absolute’ and can automatically be applied. However, most exemptions are not absolute but are ‘qualified’. This means that public interest arguments must be considered before deciding whether to withhold information under an exemption. This balancing of interests is undertaken through a ‘public interest test’. The exemption can only be maintained (and the information withheld) if the public interest in doing so outweighs the public interest in disclosure. Disclosures made under FOIA must be made within the statutory timeframe for response, which for schools is 20 school days or 60 calendar days, whichever is shorter.

Environmental Information Regulations 2004 (EIR)

EIR provide public access to environmental information held by public authorities. The Regulations apply only to ‘environmental information’ – FOIA provides access to most other types of information held by public authorities. Sometimes, it will be obvious from the request whether it concerns environmental information, in other requests it will be less clear. For this reason, it is important to refer to the full definition of ‘environmental information’ provided by Regulation 2(1) EIR before deciding whether information is environmental or not and which legislation (FOIA or EIR) applies.

The ‘Environmental Information Regulations Code of Practice’ sets out good practice recommendations for you to follow in meeting your obligations under EIR. In addition to providing guidance on responding to requests for environmental information, the Code describes the main differences between the requirements under FOIA and EIR. For example, requests for environmental information do not need to be in writing, and there are differences in the exceptions to disclosure available under EIR and the exemptions to disclosure available under FOIA. All EIR exceptions are subject to the public interest test – unlike FOIA, the EIR contains no ‘absolute’ exceptions. The statutory timeframe for responses to EIR requests is 20 working days.

If some of the requested information you hold is environmental information and some is not, you must determine which information is in the scope of FOIA and which is in that of EIR. You must go on to apply the EIR to the environmental information and FOIA to the non-environmental information.

Steps to take now

Schools and trusts can take steps now to prepare for requests for information that they may receive in the coming weeks and months. Proactive publication of information assists individuals in finding the information they require and reduces the need for specific requests for information to be made to the school or trust.

Given that there are different legal regimes for responding to requests for information, and that, depending on the regime, requests can be made in a range of ways (e.g. verbal, written, to any employee) it is important that staff are informed and can respond appropriately should they receive a request for information. Providing all staff with refresher training and key staff with enhanced training will ensure requests for information are ‘spotted’ and handled compliantly. It may also be appropriate to remind staff that ‘internal’ communications may need to be disclosed in response to a request for information. Therefore, keeping communications professional at all times is recommended.

Ensuring information held by the school or trust is handled appropriately and in accordance with the Records Management Policy will reduce the risks of holding information beyond the specified timeframe. The starting point is to ensure the information that is ‘held’ has been identified so that the retention schedule can be applied to the held information appropriately. Good records management will also reduce the potential overhead should information be requested that has been retained beyond its retention period.

Keeping clear records of requests, and details of the regime under which they were handled, will help to keep response times within statutory timeframes. This is of particular importance where requests for information are ‘hybrid’ and responses may need to be made under more than one regime.

Providing responses that are timely, made in accordance with the requirements of the applicable regime, and clearly communicated to requestors will mean that schools and trusts can successfully meet their obligations as public authorities. Another hoped-for benefit is a reduction in the potential for complaints.

If you would like advice on responding to requests for information, Stone King’s Information Law Team can advise and assist on the FOIA and EIR regimes.